The opinion of the court was delivered by: Falk,u.s.m.j.
Plaintiffs Vincent Victor Roggio and Callie Lasch Roggio bring suit against Defendant Federal Bureau of Investigation ("FBI") and unknown Doe defendants for violation of the Privacy Act, 5 U.S.C. § 552a et seq., and various torts under state law. Before the Court is Plaintiffs' motion for leave to file a second amended complaint. See CM/ECF No. 119. Defendant FBI opposes the motion. See CM/ECF No. 126. For the reasons set forth below, Plaintiffs' motion is denied.
This case arises from the alleged dissemination of Plaintiff Vincent Roggio's FBI criminal history record, commonly referred to as a "rap sheet." The rap sheet surfaced while several highly contentious civil actions involving Vincent Roggio were pending in this Court, each of which are discussed below in greater detail where relevant.
A.Vincent Roggio's Criminal History
Plaintiffs Vincent Victor Roggio and Calle Lasch Roggio are husband and wife and reside in New Jersey (Am. Compl. ¶¶ 8-9). Vincent Roggio has a criminal record. In 1987, a jury sitting in the Southern District of Florida convicted Roggio on three counts of mail fraud and four counts of making false statements to influence bank loans, United States v. Roggio, No. 85-764-Cr-EPS. He was sentenced to twelve (12) years in prison and ordered to pay roughly $13 million in restitution. The Eleventh Circuit affirmed on direct appeal, United States v. Roggio, 863 F.2d 41 (11th Cir. 1989), and the Sixth Circuit denied his petition for post-conviction habeas relief, Roggio v. Clark, 977 F.2d 582 (6th Cir. 1992).
B.Related Lawsuits and the Rap Sheet
i.Dispute with the Emmanouils
Beginning in late 2000, Vincent Roggio formed a relationship with Zachary Emmanouil, a Florida attorney. Although Emmanouil at least initially provided legal services for Roggio, the two began to discuss commercial business opportunities and eventually entered into a series of failed real estate investments (Pl.'s Reply to Opp. to Mot for Leave ("Pl.'s Reply") at 12).
In March of 2006, Emmanouil and several other members of his family filed suit against Roggio in this Court under the caption Emmanouil v. Roggio for various state law torts primarily sounding in fraud, breach of contract, and conversion. See Docket No. 06-1068, CM/ECF No.1.*fn1
At the time the complaint ("Emmanouil Compl.") was filed, the plaintiffs were collectively represented by Mitchell Pascual of Scarinci & Hollenbeck. The complaint alleged generally that Roggio made a series of materially false representations causing each plaintiff to lose substantial sums of money (Emmanouil Compl. passim). One paragraph disclosed what claimed to be Roggio's entire non-public record of criminal history, dating as far back as 1973 (Id. ¶ 254).
Roggio moved to disqualify plaintiffs' counsel and to strike the
complaint in its entirety. See Docket No. 06-1068, CM/ECF No. 4. The
Court disqualified Scarinci Hollenbeck from representing all named
plaintiffs other than Zachary Emmanouil, Pallon v. Roggio, No.
04-3625, 2006 WL 2466854 (D.N.J. Aug. 24, 2006),*fn2
and also struck the complaint in its entirety, Emmanouil v. Roggio,
No. 06-1068, 2006 WL 2927621 (D.N.J. Oct. 11, 2006), due to the
potential risk that the firm could use communications obtained during
Emmanouil's attorney client relationship with Roggio for the benefit
of the other named plaintiffs. The remaining plaintiffs*fn3
subsequently retained counsel from the firm of McElroy,
Deutsch, Mulvaney & Carpenter LLP ("MDMC"). See Docket No. 06-1068,
CM/ECF No. 26.
Several days after the motion to strike the complaint was granted, abstracts of Roggio's criminal history were published on a website with a domain name similar to one of his businesses (Am. Compl. ¶ 18). Roggio determined that, based on the formatting of the content, the abstracts came from his FBI record (Id. ¶ 19). He also noticed that the paragraph in the Emmanouil complaint which catalogued his criminal history tracked some of the language from the website verbatim (Pl.'s Brief in Supp. of Mot. for Leave ("Pl.'s Brief") at 6).
In January of 2007, Roggio moved in the pending civil action to assert affirmative claims against the Emmanouils for allegedly publishing his "rap sheet" on the internet. See Docket No. 06-1068, CM/ECF No. 55. Filed in tandem with that motion was an application to seal the supporting documents that referenced the website and discussed the criminal history contained therein. See Docket No. 06-1068, CM/ECF No. 54. The Honorable Tonianne J. Bongiovanni, U.S.M.J., granted the motion to seal, ...